Posted
by
timothy
on Saturday March 10, 2012 @09:29AM
from the cruising-gently-down-the-slippery-slope dept.

An anonymous reader writes "Stanford's Ryan Calo has previously told us that 'that there is very little in American privacy law that would prohibit drone surveillance within our borders.' But will UAVs not only be legally permitted to monitor us in public, but also be used to 'peer' into homes with high-tech thermal and chemical sensors and alert police to the presence of illicit substances or other suspicious activity? Calo writes in Wired about a pending Supreme Court case, Florida v. Jardines, which will determine 'whether the police need a warrant before a dog can sniff your house' like they already do to luggage at airports. According to Calo, if the Court approves of these searches, it's a small leap to extend that same logic to the use of drones, allowing them 'to roam a neighborhood in search of invisible infractions such as indoor marijuana.' He concludes: 'The wrong decision in Jardines makes this and similar surveillance scenarios uncomfortably plausible.'"

They can stand on the sidewalk, or in the street, and sample the air blowing past my house. Proving that the components that they identified came from my house, and not from a source upwind of my house, is going to be difficult, however, and coming onto my property to sniff directly at my home is trespassing on my property if done without a warrant, making any evidence inadmissible -- and if they have a warrant, why don't they just use it to enter and search the house?

coming onto my property to sniff directly at my home is trespassing on my property if done without a warrant, making any evidence inadmissible

There is already ample case law that makes "your property" completely navigable and searchable by law enforcement. The prevailing legal theory is that having a walkway, a front door, a facade, etc., makes your front yard and environs an "invitation" to the public to approach the house. So you can't stop the police from wandering on your property and checking out the outside without a privacy fence completely surrounding your house and a locked gate at the driveway.

"The prevailing legal theory is that having a walkway, a front door, a facade, etc., makes your front yard and environs an "invitation" to the public to approach the house. So you can't stop the police from wandering on your property and checking out the outside without a privacy fence completely surrounding your house and a locked gate at the driveway."

Complete horseshit. I don't know where you live or where you got your information, but in my state anyway, nothing even remotely like that "prevailing legal theory" exists. Police have no right to come onto my property unless they have AT LEAST reasonable suspicion in a few very specific circumstances, and in the vast majority of cases they must have probable cause or be specifically allowed by an adult at the residence. They can knock on the door if they have official business but they may not walk up to m

Not at all. Your own personal desire for privacy on your property does not make law, regardless of how outraged you may be at the situation. I'll simply point to a few cases such as CALIFORNIA v. CIRAOLO [findlaw.com] which held it legal for police to fly an airplane over someone's yard to get a look above the privacy fences, and the similar case FLORIDA v. RILEY [findlaw.com] which held that a helicopter fly-over that allowed observation through the openings in a green house did not require a warrant. Perhaps the most instructive case would be US v. DUNN [4lawnotes.com], which sets extremely narrow definition of "curtilage" of a home - the area where you may have an expectation of privacy. This is a US Supreme Court decision, so note that it applies to your state, too. In Dunn, even a perimeter fence and another interior fence were crossed by DEA agents, and the SCOTUS held that this intrusion was perfectly reasonable, and the owner had no reasonable expectation of privacy in those areas.

They can knock on the door if they have official business but they may not walk up to my door in order to conduct any kind of search or surveillance without cause

That is entirely the opposite of the findings of the SCOTUS. The 8th Circuit court stated it this way:

Whether a police officer has commenced a “search” turns not on his subjective intent to conduct a search and seizure, but rather whether he has in fact invaded an area which the defendant harbors a reasonable expectation of privacy (US v REED).

Your porch or approach to the front door is pretty much NEVER considered a private area, and it doesn't matter at all WHY an officer is there. He can be there for any reason or none at all. So your legal theory is not one that is accepted by the courts.

They have NO presumed right or "invitation" to come onto my property at any time, regardless of the presence of any drive or walkway, or even "open house" signs on the front lawn. NONE. It simply doesn't exist.

Sorry, but the courts don't care. Police and LEO are allowed to enter these areas at any time and for any purpose, the entire point being that you do not have any "expectation of privacy" in those areas. Your theory here that they require some "presumed right" to enter those areas is simply not recognized by any court or law enforcement anywhere in the entire country. I'm sorry to be the one to break this to you - it seems you're going to be really upset about it.

At least you found out now, instead of when you tried to actually assert this idea in court or with the police.

CALIFORNIA v. CIRAOLO has no bearing in my state. I cannot say whether the surveillance laws here are unusual, but if you paid attention at all, it should be obvious they are different here than in California. As I clearly stated, surveillance is illegal without a warrant, completely without regard to whether is being done from a "public" viewpoint. And also without regard to whether it violates the 4th Amendment, as considered in CIRAOLO, since it is a specific, more restrictive State law that does not rel

I was assuming you live in one of the states in the United States of America, since the thread originated with the discussion of the US Constitution.

but if you paid attention at all, it should be obvious they are different here than in California.

I'm supposed to pay attention to laws in some state or other country without you even mentioning where that might be?

As I clearly stated, surveillance is illegal without a warrant, completely without regard to whether is being done from a "public" viewpoint.

You must live in a really strange place (Aruba?) because surveillance is constantly done without a warrant. It's typically a precursor to obtaining probably cause for a warrant.

And also without regard to whether it violates the 4th Amendment, as considered in CIRAOLO, since it is a specific, more restrictive State law that does not rely on 4th Amendment for its justification.

"I was assuming you live in one of the states in the United States of America, since the thread originated with the discussion of the US Constitution."

Pardon me. For some reason I had it in my head that CALIFORNIA v. CIRAOLO was a California state decision. My bad, as far as that goes. However, it is still irrelevant as it uses the 4th amendment as its foundation, and does not address more restrictive State statute.

"You must live in a really strange place (Aruba?) because surveillance is constantly done without a warrant. It's typically a precursor to obtaining probably cause for a warrant."

No, I live in the contiguous 48, and it is NOT "consistently done" here, as I have repeatedly stated, because it is against our State statutes. Your snide remarks do not legal arguments make.

"Oh, I see - you're ranting in ignorance. CIRAOLO is a decision from the Supreme Court of the United States. It makes rulings on the Constitutionality of laws and their enforcement throughout the entire country. You see, the defense tried to argue that the police action violated the 4th Amendment, and the Supreme Court of the United States (a.k.a. SCOTUS) said it did not. That ruling, then, applies to ALL states in the United States. Get it?"

Yes, Okay, I should have read your entire post before expounding on the issues - I mixed up some things there. If this vague statute (that you won't quote) does restrict local LEO as you describe in the unknown state where you claim to live, then certainly there are [some number] of police activities typically taken that do not occur in your state in the same manner.

DUNN was based on a DEA case, but that is actually irrelevant - the point is that it defined a narrow definition of when privacy can be expe

Well, thank you for recognizing that we were discussing different things, and in return I retract any personal statements that I made. Misunderstandings do happen. I only take offense when they continue without reasonable basis.

"... your fully-surrounding privacy fence does seem to qualify in that 4-point test..."

Yes, my comment about curtilage was based on the 4 points mentioned in DUNN. While they did not explicitly say so, in so many words (which was inaccurate on my part), I believe the descriptions of curtilage clearly imply that the situation I had described would have been covered.

More like, "The same group of rights-hating cops who fly helicopters over my house looking for marijuana now want to fly quieter, cheaper drones." Anything that makes violations of our civil rights -- a category which should include the war on drugs as a whole -- easier, cheaper, or in any way more efficient is a bad thing. Constitutional protections have done little to protect people from being charged with drug law violations over feral hemp growing on their land:

Of course two can play that game. A few small automated drones with image recognition that find, lock onto, and track police officers and their cars and broadcast live their activities on youtube and position information on google maps as well as where they live and who are their family members are.

Once that starts happening we'll finally have a serious discussion about privacy. (After they try to ban that but find out it's impossible to do so.)

The right to privacy is not explicit in the constitution but a long held extended interpretation of the fourth amendment prohibition against illegal search and seizure. Laws regarding privacy are, at this point in time, undergoing a great deal of challenge and re-interpretation in state and federal courts. This is not a done deal, the law never is. The Patriot Act and similar less publicized legislation have already eroded this presumptive right and state legislatures around the country are pushing bills targeting privacy issues in the pursuit of various ideological agenda with increasing frequency.

That won't stop them from trying. This Supreme Court has flagrantly ignored the actual text of the bill of rights in the past, I'll be surprised if they have any trouble ignoring implicitly granted rights as well.

Scalia and Thomas, the most conservative members of the court both then and now, both sided with the majority in Kyllo v. US, which held that thermal imaging of a home constitutes a search and requires a warrant. Scalia even wrote the opinion.

Scalia and Thomas, the most conservative members of the court both then and now, both sided with the majority in Kyllo v. US, which held that thermal imaging of a home constitutes a search and requires a warrant. Scalia even wrote the opinion.

So what?! The constitution is utterly, and completely meaningless nowadays. The point is the police will continue to break the law as there are zero repercussions against them. Heck, they may even get a vacation (paid leave) if found "guilty". Seriously, who WON'T break the law to get free paid vacations all the time? Its human nature. What needs to be done is to throw these "cops" into jail for a very long time, and I'm not talking about champagne cop jail, but the real deal along with the rest of prison p

Had a friend who unfortunately decided to grow his own marijuana a few years ago. The cops found him by helicopter with the use of thermal imaging cameras. It was the best evidence they had when they raided him (he was growing like 5 plants) and arrested him. He was growing for personal use and was able to convince the court of that much and was not sent to prison or anything, but they DID use thermal cameras to find him.

LED based "grow lights" are perfectly feasible. With LEDs you can tailor make the spectrum for the plants photosynthetic needs, which for pot is full sun anyway.This wiki link with its charts show that fluorescents beat halogen, but are more complex and costly to install.http://en.wikipedia.org/wiki/Grow_light [wikipedia.org]

Had a friend who unfortunately decided to grow his own marijuana a few years ago. The cops found him by helicopter with the use of thermal imaging cameras. It was the best evidence they had when they raided him (he was growing like 5 plants) and arrested him.

Why would the lamps for a mere five plants generate enough heat to be so obvious to a thermal imaging camera? Something doesn't add up -- for all the cops could tell, maybe he had a few computers in that room.

Also, as others have said, such searches were already ruled illegal without warrants [wikipedia.org] eleven years ago. Perhaps they already knew he was growing, got a warrant, pulled out the IR camera and found a spot that was somewhat hotter than normal and decided to call that evidence and he had a crappy lawyer?

Why would the lamps for a mere five plants generate enough heat to be so obvious to a thermal imaging camera? Something doesn't add up -- for all the cops could tell, maybe he had a few computers in that room.

Also, as others have said, such searches were already ruled illegal without warrants [wikipedia.org] eleven years ago. Perhaps they already knew he was growing, got a warrant, pulled out the IR camera and found a spot that was somewhat hotter than normal and decided to call that evidence and he had a crappy lawyer? Or perhaps he had five plants now, but way more previously?

Nah, he only had the 5 plants. But that was the evidence as presented in court. They did a flyover his area and noticed an unusual "heat signature" which was very different from the months prior to his installing the lights and growing the plants.

I realize it is illegal and all, but since when does that stop police from doing something? Remember, most of them are above the law and can do what they want... and typically have the support of the lower courts.

Um, no it's not. Please re-read Amendment 9 again. There is nothing in the Constitution that specifically guarantees a right to privacy. It's implied of course (Amendment 9), but the cops & the courts have been ignoring the hell out of 'implied rights' lately. By this theory, I have the 'right' to demand the government support me from cradle to the grave on the grounds that my 'inalienable

In an over the top police state, "they" can (and do) any damn thing "they" fucking well please! And if you put up a fight you WILL be killed by the police or in somewhat rare(er) cases the executive can (legally now) order your assassination!

I am sooooo looking forward to my new house with the "potting" room where I can have grow lamps. Getting no-knock raids in the middle of the night where the narcs find absolutely bupkis is funny enough, but it can't be that hard to come up with extracts that drive drug-sniffing dogs wild. Just a squirt here and there around the neighborhood...

As far as "seeing" in your house the police using IR cameras to spy on you will just motivate everyone that much more to go green faster and heavily insulate their homes making those cameras pretty much useless for spying. Personally I'd rather have them us IR for patrolling so maybe we can finally get rid of the rediculous amount of outdoor lighting we have everywhere in the city.

As far as "seeing" in your house the police using IR cameras to spy on you will just motivate everyone that much more to go green faster and heavily insulate their homes making those cameras pretty much useless for spying.

Or... you set up enough computers to establish a heat and electrical usage signature for your house/the room.

Then you wait a six months to year, then start growing.

With the new LED's and CFL's, it just seems unlikely you would attract attention for a closet.

When I retire, I'll probably grow and use. Lot healthier than booze which is my current option. And you don't have to smoke, you can cook with pot butter, make chocolate candy, etc. Right now random work drug tests prevent the possibility.

When I retire, I'll probably grow and use. Lot healthier than booze which is my current option. And you don't have to smoke, you can cook with pot butter, make chocolate candy, etc. Right now random work drug tests prevent the possibility.

I remember hearing a few years back, can't remember where or when, but it was WAY pre-9/11, that the largest growing segment of crack addicts were retired males because their 'girlfriends' were cracked up and got them strung out, too. Dunno if there's any truth to it, but

When I retire, I'll probably grow and use. Lot healthier than booze which is my current option.

A more cynical person might wonder if this is one of the very reasons cannabis is opposed. We live in a use-and-throw-away -society where economic output is the beginning and end of everything, and you just know that some beancounter somewhere has calculated how much we'd save if retirees lived a year or two less.

Government agencies always want to spy on us; drug laws are simply an excuse to do so, as is terrorism, child pornography scares, and so forth. The real goal is to expand the power of the executive, a trend that we have observed for many years in this country. That is why the Controlled Substances Act allows the attorney general's office to unilaterally declare drugs to be illegal. That is why police forces can recycle seized assets into their own budgets. That is why we have paramilitary police at all

Soon, every aspiring American entrepreneur running a server farm can get busted for growing pot [slashdot.org], and every Canadian's with hot tubs and pools [theglobeandmail.com] can get charged massive fees.

Police forces are getting more militarized by the day. Drones are just the next step. Financing is through the Feds, or by confiscation.

Of course, confiscation works better in a reasonably working economy. These days, auctioning off a siezed 'drug house' is almost useless. Nobody has the money to buy it, unless they can turn it into a strip mall.

The proper thing to do would to not be caught.
I'm equally sure the neighborhood kids will find them just as amusing to fire at with BB guns as a squirrel.
Not to mention gang members getting their target practice in on them. I see this as eventually being more expensive in equipment repair/recovery/replacement then they are budgeted.

So Street View is a problem and an invasion of privacy. But flying over head taking pictures might not be? All that has to happen is Google puts their logo on the side of a drone and Microsoft will get their politicians to make using drones illegal. Problem solved.

Privacy has been gradually disappearing since civilization began. It will continue, obviously, as technology makes surveillance ubiquitous. The issue is not the privacy of the surveyed but the privacy of the surveyor. If anyone can see who is seeing them, then privacy becomes bilateral and, perhaps, mute. Of course, it will not happen suddenly. However, old age, death, and new life have a way of introducing acceptance of change.

On the other hand, if you feel that 'big brother' is silently watching yo

On the other hand, if you feel that 'big brother' is silently watching your every move, then you must have a huge ego.

I find this statement to be pretty interesting. Google certainly does monitor all the email you send, for advertising purposes (but will fork it over when law enforcement presents a court order). Facebook monitors even more details of most people's lives, and is not going to take a stand against government requests for information. Big brother is watching everyone; the government just has not figured out how best to use the flood of information to its advantage (and the friendly relationship between the government and corporations makes it hard to distinguish between corporate invasions of privacy and government invasions).

Even totalitarian states do not take action on every single piece of information that they are aware of. The point of governments collecting information on citizens is not to target everyone, it is to maintain government power by spotting potential dissidents before their movements grow to "dangerous" sizes. The struggle for privacy is a struggle for power; privacy rights are fundamental to individual empowerment and democracy.

So is big brother going to come after you because of your secret affair? Of course not. Is big brother going to release information about your secret affair when you start talking about changing the social order, reducing political corruption, or working for the benefit of the common people? It is not unthinkable that such a thing could happen.

On the other hand, if you feel that 'big brother' is silently watching your every move, then you must have a huge ego.

You don't need to be personally paranoid to realize that the worry is not necessarily constant active surveillance by 'big brother', rather that by making virtually every facet of your life recordable, the authorities will now have the ultimate version of Cardinal Richelieu's proverbial "six lines written by the most honorable of men". I don't think anyone is watching me nor would they have any reason to, but I can honestly say the way things are going would make me far less likely to, for example, become publicly active in a controversial political cause.

On the other hand, if you feel that 'big brother' is silently watching your every move, then you must have a huge ego.

More like the government could be watching your every move. Or someone else's moves. I don't only care about myself, you know.

I care about privacy not only because I and many others enjoy it, but because it helps keep corrupt governments from suddenly creating ridiculous laws to criminalize previously innocent citizens. If they could watch everyone, then it gives them the ability to easily see whether someone is doing something that they recently declared illegal and enables the

If only we had some MAGICAL FORM OF GOVERNMENT whereby the people, if the were not OK with something, could have laws passed to prevent it! Too bad we just have to stand around and wring our hands helplessly while shit happens!

Instead of sinking billions more into the failed war on drugs so that they can have even more toys, we just end the failed attempt at prohibition, stop looking for a criminal solution, and start treating the problem like the medical / social issue it is.

That's right. Legalize everything. Spend a couple billion to set up treatment centers for addiction, allow pharmacies to distribute safe products appropriately, and take the money out of the hands of criminal organizations and law enforcement entirely.

Before you start with the "think of the children" arguments. Realize that it's easier for your kids to get illegal drugs now than it is for them to get beer or cigarettes. That's how effective the war on drugs has been. And I come from a country bumpkin community. Everything I could have wanted was readily available in my middle school. I didn't even have to get to high school before I knew who to chat up for stuff like that had I been interested. Your kids aren't going to suddenly become junkies because they have access to drugs. They already have that access if they want it. The problem is already there. And for the most part they're not interested unless they have other problems in their lives.

The current solution is grossly ineffective and extraordinarily expensive at the same time. It's time to stop beating a dead horse and move on to a solution that's been proven to work.

If you wanted to be technical, alcohol probably contributes to many of the others (especially firearms and MVAs), so it's probably a little underestimated. The striking point is that the legalized drugs are two of the top